R v Coss (No 3)
[2022] NSWSC 793
•31 May 2022
Supreme Court
New South Wales
Medium Neutral Citation: R v Coss (No 3) [2022] NSWSC 793 Hearing dates: 31 May 2022 Date of orders: 31 May 2022 Decision date: 31 May 2022 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: 1. An audio/visual link be established from the Supreme Court, Moree in accordance with the following details:
Person: Gary McCrum
Remote Location: Wyong Police Station
Date: 31 May 2022
Time: Approximately 11am
Person: Wayne Johnson
Remote Location: Moree Court House/Moree Police Station
Date: 1 June 2022
Time: Approximately 10am
Person: Laurel Gudshus
Remote Location: Moree Court House/Moree Police Station
Date: 6 June 2022
Time: Approximately 10am
2. The Office of the Director of Public Prosecutions pay all reasonable costs associated with these arrangement.
3. Liberty to apply on three days’ notice.
Catchwords: CRIMINAL PROCEDURE – trial – judge alone – murder – evidence – application for three Crown witnesses to give evidence via AVL – application not opposed – orders made
Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
Category: Procedural rulings Parties: Regina (Crown)
Bruce Anthony Coss (Accused)Representation: Counsel:
Solicitors:
L Shaw (Crown)
M P King (Accused)
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)
File Number(s): 2019/336236 Publication restriction: Nil
EX TEMPORE Judgment (REVISED)
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HIS HONOUR: In this matter the Crown makes application for three witnesses to give evidence in this trial by way of audio visual link. They are Gary McCrum, Wayne Johnson and Laurel Gudshus. The power to make a direction that evidence be given by way of audio visual link is found at s 5B(1) of the Evidence (Audio and Audio Visual Links) Act1998 (NSW). Pursuant to s 5B(2):
5B Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally
…
(2) The court must not make such a direction if—
(a) the necessary facilities are unavailable or cannot reasonably be made available, or
(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or
(c) the court is satisfied that the direction would be unfair to any party to the proceeding, or
(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.
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Having regard to the fact that the application with respect to each of the witnesses was not opposed, I was informed by the Crown from the bar table of various matters such that I am not satisfied of any of the matters in s 5B(2)(a)- (d). In particular, I am in fact positively satisfied the necessary facilities are available.
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Having regard to the attitude of the accused, I am satisfied there would be no unfairness to any party to the proceedings. There is no basis to think that any of the three people will not give evidence. The real issue on the application appeared to be s 5B(2)(b), that is that I am not satisfied that the evidence or submission can more conveniently be given or made in the courtroom.
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In that respect, in relation to Mr McCrum, I have been informed that he has now left the police force and is residing on the Central Coast. His evidence, I am told, is entirely uncontroversial. In those circumstances, it is not more convenient that the evidence be given in Court, and I am satisfied that his evidence can be therefore given by way of audio visual link.
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In relation to Wayne Johnson, his evidence relates to the last sighting of Mr Willis apparently on 16 December. Mr Johnson is not fully vaccinated, raising issues with respect to his attendance at the courtroom. Having regard to that fact and the nature of his evidence, I am not satisfied that the evidence can be more conveniently given from the courtroom.
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In relation to the third witness, Laurel Gudshus, I have been informed that she suffers from agoraphobia. The result of that condition is that there may in fact be difficulty with her giving her evidence in the courtroom. Whilst her evidence does relate to matters of some potential significance in the trial, given that she may have real difficulty giving evidence in the courtroom, I am not satisfied that her evidence can more conveniently be given in the courtroom.
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On that basis, I am satisfied, as I have said, with respect to all three witnesses that their evidence should be given by way of audio visual link. I make the following orders:
An audio/visual link be established from the Supreme Court, Moree in accordance with the following details:
Person: Gary McCrum
Remote Location: Wyong Police Station
Date: 31 May 2022
Time: Approximately 11am
Person: Wayne Johnson
Remote Location: Moree Court House/Moree Police Station
Date: 1 June 2022
Time: Approximately 10am
Person: Laurel Gudshus
Remote Location: Moree Court House/Moree Police Station
Date: 6 June 2022
Time: Approximately 10am
The Office of the Director of Public Prosecutions pay all reasonable costs associated with these arrangements.
Liberty to apply on three days’ notice.
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I will sign and date orders in that form.
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Decision last updated: 16 June 2022
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